Guidance on Reopening

As states across the nation consider reopening businesses, employers and municipalities need to consider best practices for reopening. Below, we address some key aspects of the complex legal, policy, and practical issues involved in reopening businesses and government offices.

Federal Guidance

Although the federal government is not issuing mandates, it is providing guidance to encourage a uniform reopening of the United States. In “Guidelines for Opening Up America Again” the White House provides a three-phased approach to reopening the economy. There is ongoing “gating” guidance for each phase, whereby before advancing to a new phase, governments should wait until there is a downward trajectory of cases for 14 days, as well as robust testing for health care workers, including antibody testing. Phase One requires social distancing, limiting groups to no larger than 10 people, and continuing telework wherever possible. Phase One also encourages employers to limit nonessential travel and to implement a phased return-to-work plan. Once states continue to see a 14-day downward trajectory in cases, they may proceed to Phase Two, which allows nonessential travel, groups of 50 or smaller to assemble, and bars and schools to reopen. If there is again a downward trajectory during Phase Two in regional coronavirus cases, the White House’s Phase Three would allow unrestricted staffing of all worksites, as well as permitting visitors at hospitals and nursing homes. Phase Three is also when large venues, like concert halls and stadiums, would reopen. Throughout all phases, the White House recommends Americans continue washing their hands, avoid touching their faces, wear masks, and practice social distancing. The White House’s guidance is available here.

The Centers for Disease Control (CDC) has issued its own guidance for reopening. The CDC asks businesses to consider whether their local region has seen declining case numbers and to limit nonessential employees from physically coming to work. The CDC also recommends that businesses intensify cleaning efforts, space out seating, train their staff members according to social distancing protocols, and implement a monitoring system for employees to minimize the risk of exposure. The CDC’s guidance is available here.

As some states continue to require nonessential employees to stay at home, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has issued revised guidance detailing who is and is not an essential worker. Many governors have relied on this document in drafting stay at home orders. We have assisted clients by advising several states as to certain industries to categorize as essential. The CISA guidance is available here.
 
State Efforts

Many states around the nation have formed coalitions with other states in their regions in an effort to coordinate regional reopening efforts. The governors of Illinois, Indiana, Ohio, Michigan, Wisconsin, Minnesota, and Kentucky have agreed to join the Midwest Partnership. California, Oregon, and Washington have created a Western States Pact. On the east coast, Massachusetts, New Jersey, New York, Connecticut, Delaware, Pennsylvania, and Rhode Island have agreed to coordinate their reopening efforts. Although the governors intend to coordinate the reopening of their respective regions’ economies, different governors in the same region have expressed intentions to reopen at different times and with varying standards.

While some states are allowing gyms to reopen immediately, others are requiring them to wait until June, while still allowing restaurants and office workers to resume work. Many governors are considering regional reopenings (i.e. allowing parts of a state to reopen earlier than other parts). Although this might cause an influx of traffic into the reopened regions, which could spread the disease, governors may choose to do so in areas with low case counts in order to begin to reverse economic devastation.

Ice Miller has compiled a 50-state summary of how each state is reopening, which is available here. Additionally, the Council of State Governments has compiled a list of all pandemic-related executive orders, organized by state. That list is available here.

Local Authority

During times of emergency, depending on state law and executive orders, local governments may have the authority to add additional requirements and regulations for reopening that the state itself is not requiring. Local governments may not legally defy a state order by, for example imposing weaker restrictions, although some local governments in Illinois and elsewhere have nonetheless announced that nonessential businesses can reopen earlier than permitted by a state executive order. In deciding how to proceed, employers will have to consider the legal and practical ramifications of such conflicts as these. A company opening after a town lifts restrictions contrary to an executive order could still be subject to state penalties, including license revocation. For specific questions regarding the authority of a political subdivision like a city or county health department and the consequences of defying state law and executive orders, contact an attorney.

Employer Considerations

Most states, which are reopening, are requiring employers to implement social distancing and other COVID-19-related changes. In some instances, this will require employers to physically change the workspaces and layout of their businesses. Employers should recognize the changing nature of the government orders and plan accordingly. Although each employer’s situation is unique, some general considerations pertain to a reopening strategy. For example, employers should have a plan in place in case governors order businesses to shut down again due to a spike in cases. In addition, employers will evaluate whether, with proper social distancing protocols in place, it is possible for them to achieve high enough productivity (or serve enough customers) to keep their businesses profitable. Employers should consider whether their employees will be able to commute to work safely, and they should begin planning on the date they will require all employees to return to work.

In accordance with the CDC guidelines mentioned above, employers should also consider whether areas in which its facilities are located require significant mitigation, whether they can limit nonessential employees to those in the local geographic area, and whether they have implemented protective measures. Good practices to consider, for all operations, include health screening, reconfiguring work areas (e.g. plexiglass separators, cubicles, more space between work areas), limited use of common areas, staggered shifts, social distancing and non-contact rules, masks, telework, limited travel, stringent personal hygiene requirements, employee training, regular deep cleaning, and the like. Numerous employee issues will likely arise, including how to enforce COVID-related rules, how to handle sick leave requests, how to ensure ADA compliance, how to conduct health screenings, how to interview and hire new employees, changes in the law concerning employer liability, and others.

Recommendations

As different states are opening at different times with varying guidelines, Ice Miller encourages all businesses to carefully review the orders and guidance given by governmental officials. Because the pandemic situation is rapidly changing, we recommend continuous monitoring of governmental guidance. One state’s definition of “reopening” may change over time and, in any event, is likely to differ from a neighboring state’s.

In all likelihood, there will be disruptions in the supply chain as certain states reopen certain industries at different times. Companies should thus prepare for a tumultuous 2020, and possibly 2021, and should consult with attorneys regarding best practices for navigating employment, litigation, tax, regulatory, and other issues related to reopening businesses. Similarly, political subdivisions face an uncertain future with regard to their own rights and responsibilities. For questions related to governmental regulations, authority, and economic recovery opportunities, contact Mark Huddle (312-726-7146).

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. It speaks only to guidance available as of May 13, 2020. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.